FILED

United States Court of Appeals

Tenth Circuit

June 8, 2009
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES W. GREEN, an individual;

AMERICAN CIVIL LIBERTIES
UNION OF OKLAHOMA, a
non-profit corporation,
Plaintiffs - Appellants,

v.

No. 06-7098

HASKELL COUNTY BOARD OF

COMMISSIONERS, also known as
Board of County Commissioners of
Haskell County, Oklahoma; KENNY
SHORT, in his official capacity as
Chairman of the Haskell County Board
of Commissioners,
Defendants - Appellees,

MAINSTREAM BAPTIST
NETWORK; OKLAHOMA
MAINSTREAM BAPTISTS;
AMERICANS UNITED FOR
SEPARATION OF CHURCH AND
STATE; AMERICAN CENTER FOR
LAW AND JUSTICE; THE
NATIONAL LEGAL FOUNDATION;
AMERICAN LEGION # 182; and
FOUNDATION FOR MORAL LAW,
Amici Curiae.

Appeal from the United States District Court

for the Eastern District of Oklahoma
(D.C. No. 05-CV-406-RAW)

Daniel Mach, American Civil Liberties Union Foundation, Washington, D.C.

(Lane Dilg, American Civil Liberties Union Foundation, Washington, D.C.;
Micheal Salem, Salem Law Offices, Norman, Oklahoma; Tina L. Izadi, American
Civil Liberties Union of Oklahoma Foundation, Oklahoma City, Oklahoma, with
him on the briefs), for Plaintiffs-Appellants.
Kevin H. Theriot (Joel L. Oster, with him on the brief), Alliance Defense Fund,
Leawood, Kansas, for Defendants-Appellees.
Harry F. Tepker, University of Oklahoma Law Center, Norman, Oklahoma, filed
an amicus curiae brief for Mainstream Baptist Network and Oklahoma
Mainstream Baptists in support of Plaintiffs-Appellants.
Ayesha N. Khan, Richard B. Katskee, and Heather L. Weaver, Americans United
for Separation of Church and State, Washington, D.C., filed an amicus curiae
brief for Americans United for Separation of Church and State in support of
Plaintiffs-Appellants.
Jay Alan Sekulow, American Center for Law & Justice, Washington, D.C.;
Francis J. Manion and Geoffrey R. Surtees, American Center for Law & Justice,
New Hope, Kentucky, filed an amicus curiae brief for American Center for Law
and Justice in support of Defendants-Appellees.
Philip B. Onderdonk Jr., The American Legion, Indianapolis, Indiana; Kelly J.
Shackelford and Hiram S. Sasser III, Liberty Legal Institute, Plano, Texas, filed
an amicus curiae brief for The American Legion # 182 in support of DefendantsAppellees.
Steven W. Fitschen and Barry C. Hodge, Virginia Beach, Virginia, filed an
amicus curiae brief for The National Legal Foundation in support of DefendantsAppellees.
Roy S. Moore, Gregory M. Jones, and Benjamin D. DuPr, Foundation for Moral
Law, Montgomery, Alabama, filed an amicus curiae brief for Foundation for
Moral Law in support of Defendants-Appellees.
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Before HARTZ, OBRIEN, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Defendant-Appellee Haskell County Board of Commissioners approved a

constituents request to erect a monument displaying the Ten Commandments
(hereinafter the Monument) on the lawn of the county courthouse in Stigler,
Oklahoma. Plaintiffs-Appellants James Green, a Haskell County resident, and the
American Civil Liberties Union (ACLU) of Oklahoma filed suit against the
Haskell County Board of Commissioners and Kenny Short, in his official capacity
as chairman of that board, (collectively the Board) under 42 U.S.C. 1983,
alleging a violation of the Establishment Clause of the First Amendment. After a
bench trial, the district court ruled in favor of the Board, finding no constitutional
violation in the Monuments placement on the courthouse lawn.
Exercising our jurisdiction under 28 U.S.C. 1291, 1 we hold that, under the

The National Legal Foundation, as amicus curiae, challenges our

jurisdiction, arguing that 42 U.S.C. 1983 is not a proper vehicle to address
Establishment Clause violations. Because we are required to ascertain our
jurisdiction, we may consider jurisdictional arguments raised by amici. See Wyo.
Farm Bureau Fedn v. Babbitt, 199 F.3d 1224, 1230 n.2 (10th Cir. 2000). The
National Legal Foundation argues that an Establishment Clause violation is not a
deprivation of any rights, privileges, or immunities secured by the Constitution
and laws for which 1983 provides redress. 42 U.S.C. 1983; Natl Legal
Found. Amicus Br. at 11. It argues that 1983 was enacted to vindicate civil
rights and that the statutes history, grounded in the history of similar language in
(continued...)
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unique circumstances presented here, the Establishment Clause was violated

because the reasonable observer would view the Monument as having the
impermissible principal or primary effect of endorsing religion. Accordingly, we
REVERSE the district courts order.

(...continued)
the Fourteenth Amendment, demonstrates that freedom from establishment was
not intended to be treated as such a right or one of the Fourteenth Amendment
privileges or immunities privately enforceable under 1983. Natl Legal
Found. Amicus Br. at 6-10.
The Establishment Clause protects religious liberty no less than the Free
Exercise Clause does. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313
(2000) (declaring that the common purpose of the Religion Clauses is to secure
religious liberty (quoting Engel v. Vitale, 370 U.S. 421, 430 (1962))); Michael
W. McConnell, Accommodation of Religion, 1985 Sup. Ct. Rev. 1, 1 (observing
that religious liberty is the central value and animating purpose of the Religion
Clauses). The Supreme Courts application of the Establishment Clause to the
states through the Fourteenth Amendment implicitly determined that individual
rights were at stake. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)
(noting that [t]he fundamental concept of liberty embodied in [the Fourteenth]
Amendment embraces the liberties guaranteed by the First Amendment, making
the legislatures of the states as incompetent as Congress to enact laws
respecting an establishment of religion or prohibiting the free exercise thereof);
see also Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) (giving the same
application and broad interpretation to the establishment of religion clause as
Cantwell had applied to the Free Exercise Clause). And the Supreme Court has
rejected the notion that 1983s scope is limited to civil rights or equal
protection laws. Maine v. Thiboutot, 448 U.S. 1, 6-8 (1980) (interpreting the and
laws portion of 1983s grant of jurisdiction). In that light, it is unsurprising
that both the Supreme Court and this court repeatedly have, without comment,
decided 1983 actions alleging Establishment Clause violations. See, e.g.,
McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 852
(2005); Van Orden v. Perry, 545 U.S. 677, 682 (2005); Lambs Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384, 389 (1993); Marsh v. Chambers,
463 U.S. 783, 785 (1983); OConnor v. Washburn Univ., 416 F.3d 1216, 1220
(10th Cir. 2005). In sum, we have no basis to doubt our jurisdiction.
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I. BACKGROUND 2
Haskell County has a population of about 15,000 people. Approximately
2500 people live in the county seat, Stigler. The Haskell County courthouse is
located in Stigler. It sits in the middle of approximately one square block of
county property. The courthouse contains the courts, the offices of numerous
government officials, and county offices where citizens can perform a variety of
activities such as voting, paying taxes, and accessing public records.
The Haskell County Historical Society occupies a log cabin in the northeast
corner of the property. Outside of the courthouse are monuments of various sorts,
most of which were paid for and erected by private citizens. One sidewalk
contains personal message bricks. Two benches are dedicated to and inscribed by
the Classes of 1954 and 1955, respectively. The largest monumenthonoring
Haskell County citizens who died in World Wars I and IIsits in the middle of
the lawn. In front of it are smaller monuments honoring those killed in action in
Vietnam and Korea. A small rose garden with a birdbath sits behind the World
Wars monument. A monument honoring the Choctaw Nation and a monument
honoring all unmarked graves in Haskell County also are situated on the
courthouse lawn.
At issue is a recent addition to the lawna block of stone that is
2

Our recitation of the facts relies largely on the district courts factual
findings in its opinion issued after the bench trial. See Green v. Bd. of County
Commrs of County of Haskell, 450 F. Supp. 2d 1273 (E.D. Okla. 2006).
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approximately eight feet tall and three feet wide, with the Ten Commandments
inscribed on one side and the Mayflower Compact on the other. Photographs of
the two sides of the Monument are appended to this opinion as Appendix A (Ten
Commandments) and Appendix B (Mayflower Compact). The side facing the
street reads:
The Ten Commandments
I
II
III

Thou
Thou
Thou
vain.
IV
Thou
V
Thou
VI
Thou
VII Thou
VIII Thou
IX
Thou
X
Thou

shalt have no other gods before me.

shalt not make unto thee any graven image.
shalt not take the name of the Lord thy God in
shalt
shalt
shalt
shalt
shalt
shalt
shalt

remember the sabbath day and keep it holy.

honor thy father and mother.
not kill.
not commit adultry. [sic]
not steal.
not bear false witness against thy neighbor.
not covet thy neighbors house.
Exodus 20

App. at 1569.
The opposite side of the Monument reads, in all capital letters:
The Mayflower Compact
November 11, 1620
In the name of God, Amen.
We whose names are underwritten, the loyal subjects of our
dread sovereign Lord, King James by the grace of God, of
Great Britain, France and Ireland king, defender of the faith,
ect. [sic], having undertaken, for the glory of God, and
advancement of the Christian faith, and honor of our king and
country, a voyage to plant the first colony in the Northern
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parts of Virginia, do by these presents solemnly and mutually

in the presence of God, and one of another, covenant and
combine ourselves together into a civil body politic, for our
better ordering and preservation and furtherance of the ends
aforesaid; and by virtue hereof to enact, constitute, and frame
such just and equal laws, ordinances, acts, constitutions, and
offices, from time to time, as shall be thought most meet and
convenient for the general good of the colony, unto which we
promise all due submission and obedience.
In witness whereof we have hereunder subscribed our names at
Cape-Cod the 11 of November, in the year of the reign of our
sovereign lord, King James, of England, France, and Ireland
the eighteenth, and of Scotland the fifty-fourth. Anno Domini
1620.
App. at 1566. At the base of the Monument is a notation added after the start of
this litigation: Erected by Citizens of Haskell County. App. at 1085; see Green,
450 F. Supp. 2d at 1277-78.
The Monuments saga began when Michael Bush, a local citizen who is
employed as a construction worker and part-time minister, appeared at a regularly
scheduled Board meeting to seek approval for placing a Ten Commandments
monument on the courthouse lawn. At that time, the Board consisted of three
commissioners. After a brief discussion, they approved Mr. Bushs request. The
relevant portion of the meetings minutes reads: The Board met with Mike Bush
to discuss getting a monument with the 10 Commandments on it to put on the
courthouse lawn. The Board agreed that Mike could go ahead and have the
monument made and Mike is taking care of all the expense. App. at 1388.
Mr. Bush recalled telling the Board that the Lord had burdened [his]
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heart to create the Monument and that he would be responsible for raising the
funds and getting the Monument. App. at 1013. He did not present the Board
with any diagram of his proposal, although he did describe its proposed size and
that it would depict the Ten Commandments. Mr. Bush did not recall being asked
any questions before the Board approved his request. One of the commissioners
recalled discussing the historical aspects of the Monument with the other
commissioners but could not recall any more specific contents of that discussion.
Either prior to or shortly after the vote, the Board consulted with the Countys
attorney, who informed them that a decision to approve the Monument could
result in a few legal bumps. App. at 516, 1148.
After receiving approval from the Board, Mr. Bush raised the necessary
funds through religious groups in the community. With the assistance of a friend,
Mr. Bush decided on the wording of the Ten Commandments to appear on the
Monument, condensing and paraphrasing from the King James Version of the
Bible. 3 At some point in the process of designing the Monument, Mr. Bush
3

In our subsequent legal analysis, we place no significance on the

factsuggested by the district court, Green, 450 F. Supp. 2d at 1277-78 &
n.7that this may be a butchered paraphrase of the King James Version. Id. at
1278. Along with numerous other considerations, we focus on the Monuments
text (irrespective of its biblical pedigree) and its likely effect on a reasonable
observer. According to Mr. Green, the particular version of the Ten
Commandments inscribed on the Monument is uniquely Christian and contains
expressly sectarian and religious commands, such as observing the Sabbath, not
worshiping idols, believing in a deity, and not taking a deitys name in vain.
App. at 22. Mr. Green apparently seeks to draw a beneficial contrast with
(continued...)
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decided to include the Mayflower Compact as well. As it relates to the Ten

Commandments, the Board did not review or approve Mr. Bushs design of the
Monument or the version of the Ten Commandments that he selected to be
inscribed on it. With regard to the Mayflower Compact, the Board apparently was
not apprised of Mr. Bushs plan to add it to the Monument and did not authorize
him to do so. 4
The Board, however, did select the location for the monumentin line with
several of the other monuments on the lawn, approximately twenty-five feet away
from Highway 9 (the main thoroughfare through town, which runs in front of the
courthouse), five feet over from the unmarked graves monument, and fifty feet
from the World Wars monument in the center of the lawn. The location does not
3

(...continued)
monuments found in other Ten Commandments cases that purport to depict a
more interfaith version of the Ten Commandments. See ACLU Neb. Found. v. City
of Plattsmouth, Neb., 419 F.3d 772, 774 n.2 (8th Cir. 2005) (en banc) (The
monument lists eleven commands ostensibly to serve as an amalgamation of the
Jewish, Protestant, and Catholic versions of the Ten Commandments.); Books v.
City of Elkhart, Ind., 235 F.3d 292, 294 (7th Cir. 2000) ( [R]epresentatives of
Judaism, Protestantism, and Catholicism developed what the individuals involved
believed to be a nonsectarian version of the Ten Commandments because it could
not be identified with any one religious group.). However, we offer no view
concerning the validity of Mr. Greens characterization of the version of the Ten
Commandments inscribed on the Monument. In our view, this factor is not a
material consideration in our disposition under the facts of this case.
4

Although the district court found that the record was irredeemably
ambiguous concerning whether the Board knew about or approved the addition
of the Compact, the court ultimately was not convinced that the Board ever
officially approved the addition of the Compact. Green, 450 F. Supp. 2d at 1291
n.30.
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appear to be a clearly high traffic area and not the most frequented route taken
to the courthouse by citizens going there to undertake business. Green, 450 F.
Supp. 2d at 1294. A sketch of the courthouse lawn that sheds some light on the
Monuments location and its spatial relationship with the other monuments is
appended to this opinion as Appendix C. See id. at 1277 n.6 (describing the
sketch and noting that a not-to-scale diagram showing the approximate location
of the monuments on the lawn was helpful and was admitted into evidence).
On November 5, 2004, the Monument actually was placed on the lawn. It
remained covered until a dedication ceremony was held on Sunday, November 7.
This ceremony was organized by Mr. Bush, who informed the churches that had
participated in the fundraising effort for the Monument that it would be taking
place. One to two hundred people, including two of the three commissioners,
attended the ceremony, and seventeen churches were represented. The ceremony,
which lasted for about one hour, opened with a prayer and included remarks by
local pastors. Mr. Bush also explained how the Monument came to be on the
courthouse lawn. Although Mr. Bush recalled that the commissioners also said a
few words, neither commissioner recalls doing anything other than attending the
ceremony.
For several months following its unveiling, the Monument attracted
significant media attention. Photographs of commissioners posing near the Ten
Commandments appeared in newspapers distributed in Haskell County. In some
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of the photographs, two of the three commissioners were present. And, in at least
one photograph, all three were present. That photograph (featuring all three
commissioners) was introduced into evidence and is appended to this opinion as
Appendix D. At least two of the commissioners expressed a recognition that they
were asked by the media to participate in the photographs because of their status
as commissioners.
The media also quoted the commissioners making statements about the
Monument. In November 2004, one commissioner, referring to the Ten
Commandments, stated: Thats what were trying to live by, that right there . . . .
The good Lord died for me. I can stand for him, and Im going to. . . . Im a
Christian and I believe in this. I think its a benefit to the community. App. at
455. Around the same time, that commissioner (in substance) told another media
outlet: God died for me and you, and Im going to stand up for him. App. at
458-59.
Mr. Green and the ACLU of Oklahoma filed suit on October 6, 2005,
alleging that the display of the Ten Commandments on the courthouse lawn
violated the Establishment Clause. They sought a declaration that the Ten
Commandments display was unconstitutional and also prospective injunctive
relief, requiring Defendants to remove the large religious monument from the
lawn of the Haskell County Courthouse. App. at 16-17. They did not assert a
claim for monetary relief.
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Mr. Green stated that he was offended by what he perceived as the

Monuments mandates because he does not feel that [he] should be told [he is]
bound by them, as they did not come through the democratic process, and
because he subscribe[s] to the later teachings of Jesus and rejects this text from
a period of harsh, almost terroristic origins. App. at 946. He was concerned by
the commissioners statements about the Monument because they seemed to be
strongly supporting the religious aspects of the monument as a body, and he
fears that he will be treated differently and more harshly because he does not
subscribe to a particular faith that is represented by this monument. App. at
938-39, 951. He said that he cannot avoid the Monument when he conducts his
business at the courthouse.
Following the initiation of this lawsuit, Mr. Bush organized a rally and
circulated a petition to support the Monument. To advertise the rally, posters
encouraged community members to Support the Ten Commandments Monument
and depicted a young girl praying before an American flag with the caption One
Nation Under God. App. at 1409, 1534. One such poster was placed on the
front door of the courthouse. The rally was held on the courthouse lawn on
November 19, 2005, and attended by approximately three to four hundred people.
There were a number of speakers at the rally, including local pastors and a U.S.
Senator. One commissioner acknowledged saying at the rally, in effect, Ill
stand up in front of that monument and if you bring a bulldozer up here youll
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have to push me down with it. App. at 1405, 1186; see also Green, 450 F. Supp.
2d at 1280 (noting that [n]o recording exists of the commissioners statement
but he was reported to have said something like the bulldozer comment).
Furthermore, on May 6, 2006, the Board enacted a policy that prohibited Haskell
County from denying placement of a display on the courthouse lawn based on
viewpoint.
The district court held a two-day bench trial in May 2006. After reviewing
the evidence presented and visiting the Haskell County Courthouse to view the
Monument, the district court found in favor of the defendants. This appeal
followed.
II. DISCUSSION
A. Standing
Because it involves the courts power to entertain the suit, constitutional
standing is a threshold issue in every case before a federal court. OConnor, 416
F.3d at 1222. We review the question of whether a plaintiff has constitutional
standing de novo. United States v. $148,840 in U.S. Currency, 521 F.3d 1268,
1273 (10th Cir. 2008). [T]he irreducible constitutional minimum of standing
contains three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). First, the plaintiff must have suffered a concrete, actual injury in fact.
Id. Second, there must be a causal connection between the injury and the conduct
at issue. Id. Third, it must be likely that a favorable decision will redress the
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plaintiffs injury. Id. at 561. Mr. Green meets all three requirements. 5
In the context of alleged Establishment Clause violations, a plaintiff may
establish non-economic injury if directly affected by the laws and practices
against which their complaints are directed. OConnor, 416 F.3d at 1222-23
(quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church &
State, Inc., 454 U.S. 464, 486 n.22 (1982)). Although the psychological
consequence presumably produced by observation of conduct with which one
disagrees is not a sufficient injury in fact, Valley Forge, 454 U.S. at 485, we
have held that [a]llegations of personal contact with a state-sponsored image
suffice to demonstrate this kind of direct injury. OConnor, 416 F.3d at 1223
(citing Foremaster v. City of St. George, 882 F.2d 1485, 1490-91 (10th Cir.
5

The district court determined that the ACLU of Oklahoma lacked

standing for failure to allege all the elements required of an associational
plaintiff. Green, 450 F. Supp. 2d at 1286 (citing Hunt v. Wash. State Apple
Adver. Commn, 432 U.S. 333, 343 (1977)). Plaintiffs-Appellants do not
challenge this conclusion in any substantial fashion, only noting in a footnote that
although it is unnecessary for this appeal, the ACLU of Oklahoma also has
constitutional standing to challenge the display, and arguing that we should take
judicial notice of the organizations readily identifiable mission. Aplt. Opening
Br. at 22 n.7. Because we conclude that Mr. Green has standing, we agree that it
is unnecessary to address the ACLU of Oklahomas standing. However, to the
extent that Plaintiffs-Appellants intended to challenge the district courts
exclusion of the ACLU of Oklahoma, their argument is inadequately raised for
appellate review, and we will not address it. See United States v. Hardman, 297
F.3d 1116, 1131 (10th Cir. 2002) (en banc) (Arguments raised in a perfunctory
manner, such as in a footnote, are waived.). Furthermore, as the party invoking
federal jurisdiction, the ACLU of Oklahoma must do more than describe its
objection to the district courts determination; to carry its burden, it must
establish each element of standing. Lujan, 504 U.S. at 561. Thus, we review
only the Boards challenge to Mr. Greens standing.
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1989)); Weinbaum v. City of Las Cruces, N.M., 541 F.3d 1017, 1028 (10th Cir.
2008) (restating OConnors rule that in Establishment Clause cases, such
allegations of personal contact are sufficient to demonstrate direct injury); see
also Vasquez v. L.A. County, 487 F.3d 1246, 1252 (9th Cir. 2007) (We note that
the majority of other circuits that have considered the issue have held spiritual
harm resulting from ones direct contact with an offensive religious (or antireligious) symbol to be a sufficient basis to confer Article III standing.).
In OConnor, plaintiffs had to walk past the offensive statue almost every
week or alter their routes across campus. OConnor, 416 F.3d at 1223. In
Weinbaum, the plaintiffs alleged that they had direct contact with the cross
symbol that the city used as its seal, in that it was conspicuously displayed on city
property. Weinbaum, 541 F.3d at 1028. In Foremaster, plaintiff alleged that he
was confronted by the [offending city] logo on a daily basis. Foremaster, 882
F.2d at 1491. Mr. Green testified that he visits the Haskell County Historical
Society on a weekly basis and that business occasionally takes him to the
courthouse. Further, Mr. Green testified that whenever he visits the courthouse
square for either purpose, he cannot avoid the Monument. We conclude that Mr.
Greens statements are sufficient to establish that he is being frequently brought
into direct and unwelcome contact with the structure allegedly giving rise to the
Establishment Clause violation (i.e., the Monument). OConnor, 416 F.3d at
1223. Thus, Mr. Green meets the injury-in-fact requirement of standing.
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The second element of constitutional standing, a causal connection, is not

disputed and is easily met here: Mr. Greens Establishment Clause claim is based
on the Boards approval of and support for the Monument that allegedly caused
his injury. Turning to the third element, the Board argues that Mr. Greens injury
cannot be redressed by a favorable decision because his argument should be
construed as primarily evidencing an opposition to the comments that certain
commissioners made regarding the Monument, not the Monument itself, and that
Mr. Green has not sought damages or an injunction restricting such statements by
the commissioners.
This argument must fail. While the district court did note that there were
inconsistencies in Mr. Greens testimony as to whether he was more offended by
the Monument itself or by commissioners statements about the Monument,
Green, 450 F. Supp. 2d at 1282, from the outset of the lawsuit Mr. Green has
challenged the Monument, and his alleged injury in that regard is redressable.
While Mr. Green might not have a remediable injury if he were objecting to the
past comments of commissioners in isolation, it is the Monument itself that gave
rise to his Establishment Clause challenge, and Mr. Green primarily referred to
the comments because they (allegedly) indicate governmental endorsement of
religion through the Monument. The court-ordered removal of the Monument that
Mr. Green seeks would redress his injury. Accordingly, we conclude that Mr.
Green has standing to bring his claim.
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B. Mootness
Like standing, mootness is a threshold inquiry. Navani v. Shahani, 496
F.3d 1121, 1127 (10th Cir. 2007), cert. denied, 128 S. Ct. 1232 (2008); see
Citizens for Responsible Govt State Political Action Comm. v. Davidson, 236
F.3d 1174, 1182 (10th Cir. 2000) (noting that the court must determine whether
a case is moot before proceeding to the merits). A case or controversy must
remain alive throughout the litigation, including on appellate review. Navani,
496 F.3d at 1127. If, during the pendency of the case, circumstances change
such that the plaintiffs legally cognizable interest in a case is extinguished, the
case is moot, and dismissal may be required. Kan. Judicial Review v. Stout, 562
F.3d 1240, 1245 (10th Cir. 2009). The Board argues that its new policy that
prohibits Haskell County from denying placement of a display on the courthouse
lawn based on viewpoint constitutes just such a circumstance, rendering this case
moot.
In deciding whether a case is moot, [t]he crucial question is whether
granting a present determination of the issues offered . . . will have some effect in
the real world. Id. at 1246 (alteration in original) (quoting Davidson, 236 F.3d
at 1182); see Phelps v. Hamilton, 122 F.3d 885, 891 (10th Cir. 1997) (noting that
the inability to grant effective relief renders an issue moot). To the extent that
the Board characterizes this case as merely a challenge to the unwritten policy
regarding placement of displays on the courthouse lawn, the assertion is belied by
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the very portion of the complaint that they cite. It charges that the Boards acts,
practices, and policies constitute an impermissible endorsement. Aplee. Br. at
25 (quoting App. at 25). The Boards implementation of its May 2006 policy
does not alter the previous actions of the Board; nor does it change the Boards
alleged endorsement of religion through the Monument. Mr. Green has sought a
declaration that Boards actions resulting in the erection of the Ten
Commandments display were unconstitutional. See App. at 731 (amended pretrial
order noting that plaintiffs seek declaratory relief that the Ten Commandments
Monument and its placement on Haskell County Courthouse law violates the
Establishment Clause).
Moreover, insofar as the Boards mootness assertion rests on the ground
that, regardless of the outcome of this case, its 2006 written policy would oblige
it to accept an identical monument for display, the assertion is untenable. The
possibility that a future monument installed under different circumstances might
pass constitutional muster does not moot the present case. We are unable to
decide that hypothetical case on the facts before us. See OConnor, 416 F.3d at
1222 (Although it is conceivable that the university could bring some other
religiously themed statue onto campus as part of a future sculpture exhibition, this
court cannot resolve the constitutionality of a hypothetical future statue given that
Establishment Clause questions are heavily dependent on the specific context and
content of the display.). The Monument remains on the courthouse lawn; at
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bottom, Mr. Greens lawsuit seeks its removal. Therefore, Mr. Green has a
legally cognizable interest in this litigations outcome. For the foregoing reasons,
then, we conclude that this case presents a live case or controversy and is not
moot.
C. Establishment Clause Claim
1. Standard of Review
Ordinarily, we review the district courts factual findings, made after a
bench trial, for clear error[,] and its legal conclusions de novo. Orient Mineral
Co. v. Bank of China, 506 F.3d 980, 1001 (10th Cir. 2007), cert. denied, 128 S.
Ct. 2872 (2008); see also Fed. R. Civ. P. 52(a)(6). 6 However, in a First
Amendment case, we have an obligation to make an independent examination of
the whole record. Snyder v. Murray City Corp., 159 F.3d 1227, 1230 n.7 (10th
Cir. 1998) (en banc) (internal quotation marks omitted) (citing Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984)); Weinbaum, 541 F.3d
at 1029. We review de novo a district courts finding of constitutional fact and
its ultimate conclusions regarding a First Amendment challenge. 7 Weinbaum,
6

Rule 52(a)(6) provides: Findings of fact, whether based on oral or

other evidence, must not be set aside unless clearly erroneous, and the reviewing
court must give due regard to the trial courts opportunity to judge the witnesses
credibility.
7

In Bose, the Supreme Court concluded that the strictures of Federal

Rule of Civil Procedure 52(a) did not apply to a district courts conclusion that an
alleged libeler had actual malice because the determination was a First
(continued...)
- 19 -

541 F.3d at 1029 (quoting Fleming v. Jefferson County Sch. Dist. R-1, 298 F.3d
918, 922 (10th Cir. 2002)). More specifically, in Establishment Clause cases, we
consider a district courts findings on each part of the Lemon test to be
constitutional facts. Robinson v. City of Edmond, 68 F.3d 1226, 1230 n.7 (10th
Cir. 1995) (applying the test derived from Lemon v. Kurtzman, 403 U.S. 602
(1971)). We must still give due regard, however, to the trial judges
opportunity to observe the demeanor of witnesses. Bose, 466 U.S. at 499-500,
514.
Furthermore, our searching review of the record with regard to
constitutional facts does not alter our ordinary clearly-erroneous review of the
district courts other factual findings. See id. at 514 n.31 (The independent
review function is not equivalent to a de novo review of the ultimate judgment
itself, in which a reviewing court makes an original appraisal of all the evidence
to decide whether or not it believes that judgment should be entered for
plaintiff.). [T]he special Bose rule applies only to constitutional facts and not
to the basic historical facts upon which the claim is grounded, which are subject
to the usual clearly erroneous standard of review. Friday, 525 F.3d at 950
(applying Bose to a Free Exercise Clause claim). While it may be difficult at
7

(...continued)
Amendment question[] of constitutional fact. United States v. Friday, 525 F.3d
938, 949 (10th Cir. 2008) (quoting Bose, 466 U.S. at 508 n.27), cert. denied, 129
S. Ct. 1312 (2009); see generally Henry P. Monaghan, Constitutional Fact
Review, 85 Colum. L. Rev. 229 (1985).
- 20 -

times to distinguish historical facts from constitutional facts, we will give

deference to the district courts ordinary factual findings and more closely review
its conclusions about purpose, effect, and entanglement.
2. The Lemon Test
The Religion Clauses of the First Amendment provide that Congress shall
make no law respecting an establishment of religion, or prohibiting the free
exercise thereof. U.S. Const. amend. I. Like other provisions of the First
Amendment, they are applied to the states under the Fourteenth Amendment.
Cantwell, 310 U.S. at 303. Despite scattered signals to the contrary, the
touchstone for Establishment Clause analysis remains the tripartite test set out in
Lemon. Weinbaum, 541 F.3d at 1030 (footnote omitted); see Utah Gospel
Mission v. Salt Lake City Corp., 425 F.3d 1249, 1258-59 (10th Cir. 2005) (noting
that we deem the Lemon test to be the traditional standard for evaluating
Establishment Clause claims). Under that test, to avoid an Establishment Clause
violation, the challenged government action (1) must have a secular legislative
purpose, (2) must have a principal or primary effect that neither advances nor
inhibits religion, and (3) must not foster an excessive government entanglement
with religion. Utah Gospel Mission, 425 F.3d at 1259 (citing Lemon, 403 U.S. at
612-13).
Justice OConnors concurring opinion in Lynch v. Donnelly, 465 U.S. 668,
687-94 (1984) (OConnor, J., concurring), offered a refined version of the
- 21 -

Lemon test implicating its purpose and effect elements that has been repeatedly
used in this circuit. OConnor, 416 F.3d at 1224 (In examining challenges to
government action under the Establishment Clause, this circuit has interpreted the
purpose and effect prongs of Lemon in light of Justice OConnors endorsement
test.); see Weinbaum, 541 F.3d at 1030; Bauchman ex rel. Bauchman v. W. High
Sch., 132 F.3d 542, 551 (10th Cir. 1997). This endorsement test holds that the
government impermissibly endorses religion if its conduct has either (1) the
purpose or (2) the effect of conveying a message that religion or a particular
religious belief is favored or preferred. Bauchman, 132 F.3d at 551 (internal
quotation marks omitted).
We are obliged here to apply the Lemon test, with Justice OConnors
endorsement patina. See Weinbaum, 541 F.3d at 1030 (noting our obligation to
apply the hybrid Lemon/endorsement test); OConnor, 416 F.3d at 1224 (This
court will therefore continue to apply the Lemon test as modified by Justice
OConnors endorsement test, while remaining mindful that there is no testrelated substitute for the exercise of legal judgment. (quoting Van Orden, 545
U.S. at 700 (Breyer, J., concurring)). 8 A governmental action violates the
8

A plurality of the Supreme Court has (a) concluded that the Lemon
test is not useful in dealing with the sort of passive [Ten Commandments]
monument that Texas has erected on its Capitol grounds, (b) disregarded the
endorsement test, and (c) instead employed an analysis driven both by the nature
of the monument and by our Nations history. Van Orden, 545 U.S. at 686
(plurality opinion). Justice Breyer concurred in the judgment, noting that the
(continued...)
- 22 -

(...continued)

Court has found no single mechanical formula that can accurately draw the
constitutional line in every case and declaring that in borderline cases there is
no test-related substitute for the exercise of legal judgment. Id. at 699-700
(Breyer, J., concurring). In Weinbaum, we observed that certain Supreme Court
Justices have harshly criticized the Lemon test. Weinbaum, 541 F.3d at 1030
n.14. However, we ultimately concluded that we are still obliged to apply Lemon,
as refined by Justice OConnors endorsement test: [T]he Lemon test clings to
life because the Supreme Court, in the series of splintered Establishment Clause
cases since Lemon, has never explicitly overruled the case. While the Supreme
Court may be free to ignore Lemon, this court is not. Id. (citation omitted); see
also Edith Brown Clement, Public Displays of Affection . . . For God: Religious
Monuments After McCreary and Van Orden, 32 Harv. J.L. & Pub. Poly 231, 246
(2009) [hereinafter Clement, Public Displays] (Most courts of appeals have
concluded that the Lemon tripartite test of purpose, effect, and entanglement still
stands after Van Orden, yet this conclusion has not come without a struggle.).
Therefore, we cannot do as the Board wishes, see Aplee. Br. at 38, 45-46 n.21,
and be guided in our analysis by the Van Orden pluralitys disregard of the Lemon
test.
The Board also has argued that Establishment Clause jurisprudence should
not apply here at all and that this case should be analyzed under the legal
framework of the Free Exercise Clause. The Free Speech Clause restricts
government regulation of private speech; it does not regulate government
speech. Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1131 (2009)
(emphasis added). As a logical and necessary support for its argument, the Board
thus maintains that the Monument should be viewed as private speech rather than
government speech. The Supreme Courts recent Pleasant Grove decision,
however, forecloses this argument. There, the Court held that [p]ermanent
monuments displayed on public property typically represent government speech
and, therefore, Free Exercise Clause jurisprudence is inapposite. Id. at 1132. The
Board notes that the Supreme Court did not say that all permanent monuments
constitute government speechjust that they typically doand that the Board has
intentionally opened a limited public forum for monuments on the courthouse
lawn. We are hard-pressed to view the circumstances here as resembling the
limited circumstances in which the forum doctrine might properly be applied to a
permanent monument, as described by the Pleasant Grove Court. Id. at 1138
(noting that such limited circumstances might be present, for example, if a
town created a monument on which all of its residents (or all those meeting some
(continued...)
- 23 -

Establishment Clause if it fails to satisfy any of three prongs of the Lemon test.
See Utah Gospel Mission, 425 F.3d at 1259 (Thus, to succeed, Plaintiffs must
allege facts which suggest a violation of any part of the [Lemon] analysis.
(emphasis added)); Bauchman, 132 F.3d at 551 (noting that governmental action
does not run afoul of the Establishment Clause so long as it satisfies all three
prongs of the Lemon test); see also OConnor, 416 F.3d at 1224 (relying on
Bauchman in noting the need for the challenged governmental action to satisfy all
three Lemon prongs).
Mr. Greens arguments do not implicate the third prong of the Lemon test.
That is, Mr. Green does not contend on appeal that the Boards conduct in relation
to the Ten Commandments display fosters an excessive government entanglement
with religion. He does argue, however, that the Boards conduct in connection
with the Ten Commandments display fails to satisfy Lemons first and second
prongs. For the reasons stated below, we ultimately conclude that the Boards

(...continued)

other criterion) could place the name of a person to be honored or some other
private message). This is simply not one of those situations in which it is
difficult to tell whether a government entity is speaking on its own behalf or is
providing a forum for private speech. Id. at 1132. However, as the Court noted:
This does not mean that there are no restraints on government speech. For
example, government speech must comport with the Establishment Clause. Id. at
1131-32; see id. at 1139 (Stevens, J., concurring) (For even if the Free Speech
Clause neither restricts nor protects government speech, government speakers are
bound by the Constitutions other proscriptions, including those supplied by the
Establishment and Equal Protection Clauses.). And it is the propriety of the
Boards action under the Establishment Clause that is properly before us here.
- 24 -

action does violate the Establishment Clause with respect to the second prong. In
other words, we conclude that the principal or primary effect of the Boards
action is to endorse religion or a particular form of religion. Accordingly, we
need not (and do not) opine on whether the Boards action satisfies the first
Lemon prong (i.e., whether the Boards purpose was secular).
3. Application
i. The Monument Is Not Presumptively Unconstitutional
Establishment Clause cases are predominantly fact-driven . . . .
Weinbaum, 541 F.3d at 1022. We reject at the outset Mr. Greens argument that
[g]overnmental [d]isplays of the [t]ext of the Ten Commandments [a]re
[p]resumptively [u]nconstitutional. Aplt. Opening Br. at 24. In Stone v.
Graham, 449 U.S. 39, 41 (1980), the Supreme Court observed that [t]he preeminent purpose for posting the Ten Commandments on schoolroom walls is
plainly religious in nature. In McCreary, the Court construed that language to
mean that isolated exhibition in public school classrooms could presumptively be
understood as meant to advance religion. McCreary, 545 U.S. at 867. However,
McCreary did not adopt a general presumption outside of that school context:
Specifically, it noted that Stone did not purport to decide the constitutionality of
every possible way the Commandments might be set out by the government, and
under the Establishment Clause detail is key. Id.; see also Van Orden, 545 U.S.
at 690-91 (construing Stone as an example of particular[] vigilan[ce] in
- 25 -

monitoring compliance with the Establishment Clause in elementary and

secondary schools (internal quotation marks omitted)); id. at 703 (Breyer, J.,
concurring) (distinguishing Stone on the basis that given the impressionability of
the young, government must exercise particular care in separating church and
state on the grounds of a public school).
The Ten Commandments have a secular significance that government may
acknowledge. See Van Orden, 545 U.S. at 688-89 (plurality opinion) (providing
examples showing that acknowledgments of the role played by the Ten
Commandments in our Nations heritage are common throughout America and
observing that the Courts opinions, like our building, have recognized the role
the Decalogue plays in Americas heritage); id. at 701 (Breyer, J., concurring)
(noting that in certain contexts the Commandments can convey a secular moral
message . . . about proper standards of social conduct or a message about a
historic relation between those standards and the law). Like the McCreary
Court, we are unwilling to presume that the text of the Ten Commandments here
could not be constitutionally integrated into a governmental display that
highlights its secular significance. See McCreary, 545 U.S. at 874 (expressly
declining to hold that a sacred text can never be integrated constitutionally into a
governmental display on the subject of law, or American history). 9 Accordingly,
9

In fact, the closest the McCreary Court came to a presumption

against a display of the Ten Commandments is its conclusion that a religious
(continued...)
- 26 -

we reject Mr. Greens contention that we should deem the Boards display of the
Monument as presumptively unconstitutional because the Monument is inscribed
with the Ten Commandments.
ii. The Monuments Effect
Governments may not mak[e] adherence to a religion relevant in any way
to a persons standing in the political community. County of Allegheny v. Am.
Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 594 (1989)
(quoting Lynch, 465 U.S. at 687 (OConnor, J., concurring)). And actions which
have the effect of communicating governmental endorsement or disapproval,
whether intentionally or unintentionally, . . . make religion relevant, in reality or
public perception, to status in the political community. Lynch, 465 U.S. at 692
(OConnor, J., concurring). In applying the effect prong, we evaluate whether a
reasonable observer, aware of the history and context of the community in which
the conduct occurs, would view the practice as communicating a message of
government endorsement or disapproval. Bauchman, 132 F.3d at 551-52
(internal quotation marks omitted). However, not every governmental activity
that confers a remote, incidental or indirect benefit upon religion is
constitutionally invalid. Id. at 555. Rather, it must be established that the
9

(...continued)
object is unmistakable when the government initiates an effort to place this
statement alone in public view. 545 U.S. at 869. Because this case involves
neither government initiation nor an isolated display, we are on firm footing in
reviewing this case without adopting a presumption against the Monument.
- 27 -

governmental activity has a princip[al] or primary effect of advancing or

endorsing religion. Id.
In Weinbaum, we noted that application of the effect prong of the Lemon
test to a particular set of facts involves an objective inquiry. See Weinbaum,
541 F.3d at 1031; cf. Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153,
175 (3d Cir. 2008) (viewing the endorsement analysis as constituting a distinct
Establishment Clause test but noting that [t]he test does not focus on the
governments subjective purpose when behaving in a particular manner, but
instead focuses on the perceptions of the reasonable observer), cert. denied, 129
S. Ct. 1524 (2009). We proceeded then to offer a useful summary of the nature of
the inquiry:
[T]he effect prong looks through the eyes of an objective
observer who is aware of the purpose, context, and history of
the symbol. The objective or reasonable observer is kin to the
fictitious reasonably prudent person of tort law. So we
presume that the court-created objective observer is aware of
information not limited to the information gleaned simply
from viewing the challenged display. If a government symbol
has long gone unchallenged, there is a suggestion that an
objective observer would not think that the symbol endorses a
religious message.
Weinbaum, 541 F.3d at 1031 (citations and footnote omitted) (quoting Gaylor v.
United States, 74 F.3d 214, 217 (10th Cir. 1996); OConnor, 416 F.3d at 1228).
In this inquiry, [u]ndoubtedly, the objective observer is presumed to
know far more than most actual members of a given community. Id. at 1031

- 28 -

n.16. [R]easonable observers have reasonable memories and are aware of the
context in which the policy arose. McCreary, 545 U.S. at 866 (alteration and
internal quotation marks omitted). However, we do not treat the reasonable
observer as omniscient. See, e.g., Bauchman, 132 F.3d at 560 (concluding that
courts impart[] such knowledge to the reasonable observer in the broad sense of
community awareness, not in the sense that a reasonable observer would have
knowledge of every alleged past constitutional violation of a particular
defendant).
Consistent with the fact-intensive nature of this effect inquiry, the
Supreme Court has advised that, in Establishment Clause cases, the inquiry calls
for line drawing; no fixed, per se rule can be framed. Weinbaum, 541 F.3d at
1039 (quoting Lynch, 465 U.S. at 678)). A challenged government action that
might pass constitutional muster in some settings might be deemed
constitutionally suspect in some other American communities or in other
contexts. Id.; cf. Borden, 523 F.3d at 158-59, 178 (holding that when viewing
the acts [i.e., silent acts of bowing his head during his teams pre-meal grace and
taking a knee with his team during a locker-room prayer] in light of [plaintiff
coachs] twenty-three years of prior prayer activities with the East Brunswick
High School football team during which he organized, participated in, and even
led prayer activities with his team, a reasonable observer would conclude that
[plaintiff] was endorsing religion when he engaged in these acts, but noting that
- 29 -

this conclusion would not be so clear without these twenty-three years of prior
prayer activities). Context carries much weight in the Establishment Clause
calculus. Weinbaum, 541 F.3d at 1033.
Thus, the reasonable observer in this case would be aware of the nature and
history of the Haskell County community, the circumstances surrounding the
Monuments placement on the courthouse lawn, its precise location on the lawn
and its spatial relationship to the other courthouse monuments, and also the
Haskell County communitys response to the Monument. In particular, the
reasonable observer would be aware of Mr. Bushs religious motivation for
seeking the erection of the Monument. After learning of these motivations, the
Board swiftly approved its erection and allowed the project to go forward, despite
being aware that there might be adverse legal consequences. 10 And, when those
10

To be clear, the focus is on the government actors conduct rather

than the private citizens. In connection with Lemons purpose prong, this is
probably most patent. See Weinbaum, 541 F.3d at 1031 ([W]e must scrutinize
the governments intent; thus, where the challenged conduct is the selection or
display of artwork, the artists inspiration or intent is irrelevant.); Summum v.
City of Ogden, 297 F.3d 995, 1010 (10th Cir. 2002) (The purpose inquiry,
however, centers not on the purpose animating the speech of a particular private
actor . . . but, rather, on the purpose for which the government allows such speech
on government property.); cf. Borden, 523 F.3d at 175 (noting that [t]he
[endorsement] test does not focus on the governments subjective purpose when
behaving in a particular manner, but instead focuses on the perceptions of the
reasonable observer). Therefore, the subjective motivation of Mr. Bush per se,
in the purpose inquiry, is essentially irrelevant. However, as to the effect prong,
things are not that simple. Under the effect prong, although the area of concern is
still the government actors conductthat is, its effectthe analysis must
undertake a significant inquiry into the surrounding circumstances of which the
(continued...)
- 30 -

adverse legal consequences did in fact materialize in the form of Mr. Greens
lawsuit, the Board seemingly did not hesitate to stay the course, electing to
maintain the Monument without clarifying its purposes in doing so. Further,
although the Monument ultimately also was inscribed with the Mayflower
Compact, the Board approved the Monument with the understanding that it would
be inscribed only with the Ten Commandments.
Haskell County is a place where [e]veryone knows each other. Green,
450 F. Supp. 2d at 1274. The Board members were identifiable as Board
members. Indeed, one commissioner noted that Board members act as county
officials 24 hours a day, 7 days a week. App. at 535. Mr. Bush also testified
that everyone would know the commissioners and they would not have to be
10

(...continued)
reasonable observer would have been aware. And, here, the reasonable observer
would have been aware of the circumstances under which the Monument came to
sit on the courthouse lawn, including the fact that Mr. Bush revealed to the Board
his unalloyed religious motivation in seeking to put the Monument there and that
the Board in short order agreed to allow him to erect it. The reasonable observer
would be very unlikely in the effect analysis to give the Boards agreement
determinative weight as an endorsement of religion. However, in light of Mr.
Bushs expressed views, the reasonable observer could not negate this
circumstance as one in the totality of circumstances that was consistent with a
conclusion that the Boards conduct had the effect of endorsing religion. This is
something that the reasonable observer would have been more readily able to do
if Mr. Bush, for example, had voiced a historical or other secular purpose for the
installation of the Monument. Cf. Van Orden, 545 U.S. at 701 (Breyer, J.,
concurring) (noting that, given the Fraternal Order of Eagless civic-education
purposes aimed at fighting juvenile delinquency, [t]he circumstances
surrounding the displays placement on the capitol grounds, inter alia, suggest
that the State itself intended the latter, nonreligious aspects [of the Ten
Commandments] tablets message to predominate).
- 31 -

identified for people to know their position.

The reasonable observer would know that two of the three commissioners
attended the unveiling of the Monument, which had been organized by Mr. Bush
and included remarks by local pastors. See Green, 450 F. Supp. 2d at 1291 n.30
([E]veryone knows each other[,] and word travels in Haskell County faster than
the constant airspeed of a European swallow.). Mr. Bush specifically recalled
both of the commissioners speaking at the unveiling. Those commissioners posed
for photographs beside the Monument, which appeared in locally distributed
newspapers. After this lawsuit began, Mr. Bush organized a religiously themed
rally to support the Monument, which gathered a crowd of three to four hundred
people. The same two commissioners attended. One of them spoke briefly in
support of the monument, and he is reported to have said, Ill stand up in front of
that monument and if you bring a bulldozer up here youll have to push me down
with it. App. at 1405, 1186; see also Green, 450 F. Supp. 2d at 1280.
Numerous quotes from these commissioners appear in news reports,
ranging from statements reflecting their determination to keep the Monument, see
App. at 459 (I wont say that we wont take it down, but it will be after the
fight.), to statements of religious belief, see, e.g., App. at 455 (Thats what
were trying to live by, that right there. The good Lord died for me. I can
stand for him. And Im going to. Im a Christian and I believe in this. I think
its a benefit to the community.); App. at 458-59 (God died for me and you, and
- 32 -

Im going to stand up for him.). We conclude, in the unique factual setting of a

small community like Haskell County, that the reasonable observer would find
that these facts tended to strongly reflect a government endorsement of religion.
In particular, we find support for this conclusion in the public statements of the
Haskell County commissioners. In none of their statements did the
commissioners attempt to distinguish between the Boards position and their own
beliefs. Several of the commissioners statements would naturally be construed
as having been made on behalf of the Board, including, I wont say that we
wont take it down, but it will be after the fight, App. at 459 (emphasis added),
and Were definitely going to leave our monument there until the law tells us to
take it down. App. at 1170 (emphasis added). By not distinguishing their
personal opinions from their official views, the commissioners left the impression
that a principal or primary reason for the erection and maintenance of the display
was religious. See, e.g., App. at 458-59 (where one commissioners statement
that God died for me and you, and Im going to stand up for him appeared in
close proximity to the statement I wont say that we wont take it down, but it
will be after the fight).
Nor did the Board act[] affirmatively to discourage any mistaken
impression that private speakers [were] speaking for the Board. Peck v. Upshur
County Bd. of Educ., 155 F.3d 274, 281 (4th Cir. 1998). Such action or inaction
has been found significant in the Establishment Clause context. Cf. Rosenberger
- 33 -

v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 841 (1995) (holding that
government neutrality was apparent where the government ha[d] not fostered or
encouraged any mistaken impression that the private speech was the universitys
own (internal quotation marks omitted)); Capitol Square Review & Advisory Bd.
v. Pinette, 515 U.S. 753, 766 (1995) (rejecting the idea that the distinction
between private and government speech disappears when the private speech is
conducted too close to the symbols of government, at least where, as here, the
government has not fostered or encouraged the mistake); Bd. of Educ. v.
Mergens ex rel. Mergens, 496 U.S. 226, 251 (1990) (rejecting the fear of a
mistaken inference of endorsement because the school had the capacity to make
clear that its recognition of [a student religious] club is not an endorsement of
the view of the clubs participants and to the extent that it did so, students will
reasonably understand that the schools official recognition of the club evinces
neutrality toward, rather than endorsement of, religious speech). Furthermore,
the photographs of commissioners standing beside the Monumentat least one
depicting all three commissionersgive the impression of the Boards united
endorsement of the Monument itself. Indeed, at least two of the commissioners
expressly recognized that they were asked by the media to participate in the
photographs because of their status as commissioners.
Like the Eighth Circuit, we do not believe elected government officials are
required to check at the door whatever religious background (or lack of it) they
- 34 -

carry with them before they act on rules that are otherwise unobjectionable under
the controlling Lemon standards. Clayton ex rel. Clayton v. Place, 884 F.2d 376,
380 (8th Cir. 1989) (refusing to find an action unconstitutional due only to its
harmony with the religious preferences of constituents or with the personal
preferences of the officials taking action); cf. Van Orden, 545 U.S. at 699
(Breyer, J., concurring) ([T]he Establishment Clause does not compel the
government to purge from the public sphere all that in any way partakes of the
religious. Such absolutism is . . . inconsistent with our national traditions . . . .
(citations omitted)). In a small community like Haskell County, where everyone
knows everyone, and the commissioners were readily identifiable as such,
however, we conclude that the reasonable observer would have been left with the
clear impressionnot counteracted by the individual commissioners or the Board
collectivelythat the commissioners were speaking on behalf of the government
and the government was endorsing the religious message of the Monument. See
McCreary, 545 U.S. at 869 (The reasonable observer could only think that the
[government] meant to emphasize and celebrate the Commandments religious
message.). 11
11

We recognize that the district court had a different take on the

situation.
No believable evidence exists that the Commissioners were
ever referred to in their official capacities. Furthermore, given
the nature of the humble tight-knit community in this rural
(continued...)
- 35 -

We underscore that the reasonable observers impression of government

endorsement would not be based upon the commissioners statements alone. The
statements would be just part of the history and context of which the reasonable
observer would be cognizant. In particular, that observer also would know of the

11

(...continued)
Oklahoma county described by witnesses at trial, the court is
not convinced that a reasonable observer would have viewed
these men as speaking or appearing for Haskell County
government.

Green, 450 F. Supp. 2d at 1293. However, we simply do not find the courts
reasoning to be persuasive. Precisely because Haskell County is a small,
sparsely-populated, rural Oklahoma county, id., no one would need to refer to
the commissioners as acting in their official capacity in order for the reasonable
observer to conclude that they were doing so. Furthermore, the courts assertion
that it was not convinced from the witnesses testimony about Haskell Countys
characteristics that a reasonable observer would have deemed the commissioners
to be acting for the county is not the sort of finding concerning the basic
historical facts upon which the claim is grounded that is afforded the usual
clearly erroneous standard of review. Friday, 525 F.3d at 950; cf. Green, 450
F. Supp. 2d at 1284, 1293 (making this specific assertion appearing in portion of
opinion entitled Conclusions of Law). The question is not whether the
commissioners actually were carrying out official functions in connection with
their appearances at the Monument and in offering comments about it. Cf. Green,
450 F. Supp. 2d at 1276 (finding relative to the unveiling that neither gentlemen
appeared in his official capacity as County Commissioner); id. at 1280 (finding
as to the rally that there is no indication they attended in their official capacity
as County Commissioners). Rather, the question is whether a reasonable
observer would have perceived them as being engaged in official activities. And
the answer to that question is closely (if not inextricably) intertwined with the
legal effect determination. Therefore, insofar as it is a factual finding at all, the
courts assertion regarding the reasonable observers perception is akin to a
finding concerning a constitutional fact and subject to de novo review. See
Weinbaum, 541 F.3d at 1029 (noting that in the First Amendment context we
review de novo a district courts findings concerning constitutional facts). Under
that standard, we conclude that the district courts assertion is not well-grounded.
- 36 -

religious motivationseemingly endorsed by the Boardthat led to the

installation of the Monument. And the observer would have little information
indicating that there was more at play in the Monuments installation, and the
Board members efforts to maintain it in the face of clearly voiced Establishment
Clause concerns, 12 than the Boards desire to facilitate the dissemination of a
religious (i.e., in their view, Christian) message. In this light, we would be hard12

There of course is no requirement that governments fold under

litigation pressure or explain themselves when confronted with an Establishment
Clause challenge. Indeed, we observed as much in OConnor, 416 F.3d at 1227
(A defendants failure to change its behavior in accordance with plaintiffs
demands, however, is not in itself proof of anti-religious intent.). However,
significantly, the OConnor court took note under Lemon of the universitys
publicly announced secular reasons for continuing to maintain the allegedly antiCatholic display after Establishment Clause concerns were raised. Id. at 1228. In
particular, just because a government is not required to explain its intent in
erecting and retaining a Ten Commandments display, in the face of strongly
voiced religious endorsement allegations, does not mean that the reasonable
observer is prohibited from considering the governments decision to stand mute,
and from drawing inferences from that decision that the law ordinarily permits to
be drawn when one does not rebut a serious allegation of wrongdoing, despite
understanding it and being well situated to respondthat is, the inference that the
government accepts the truth of the allegation. Cf. Fed. R. Evid. 801(d)(2)(B)
(discussing adoptive admissions: a statement of which the party has manifested
an adoption or belief in its truth); 5 Joseph M. McLaughlin et al., Weinsteins
Federal Evidence (2d ed. 2009) (noting that [a] party can adopt anothers
statement by responding to it with silence, and that courts must look to the
circumstances including whether the party understand[s] the statement and is
able or unable . . . to reply to it); see also New Eng. Mut. Life Ins. Co. v.
Anderson, 888 F.2d 646, 650 (10th Cir. 1989) (declining to apply the adoptive
admission principle to defendant because, inter alia, New England did not
establish that she had ever read the Times article [including the alleged
statement], or that she was in any position to respond to the article). That
inference would not be determinative by any means, but it would be one factor,
among many others, that the reasonable observer could consider in reaching a
conclusion on the endorsement issue.
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pressed to conclude that a reasonable observer, reasonably informed as to the

relevant circumstances, would perceive the government to be acting neutrally. 13
City of Ogden, 297 F.3d at 1010.
We recognize that certain evidence weighs against a finding of
endorsement. However, surveying the entire record, we cannot conclude that this
evidence sufficiently blunts the message of endorsement that we find to be
present to alter the result. Perhaps militating most significantly in favor of a
conclusion of non-endorsement is the fact that a reasonable observer would have
13

The Board can draw little (if any) support from the fact that Mr.
Bush raised the funds for the Monument from private sources and effectively
donated it to Haskell County for placement on the courthouse lawn. See Green,
450 F. Supp. 2d at 1295-96 (treating the unexpected dispute over whether
Haskell County actually owns the Monument as essentially waived). The
Supreme Courts Pleasant Grove decision dispels any doubtat least under these
factsthat, once donated, the Monument manifested government speech as a
matter of law. Pleasant Grove, 129 S. Ct. at 1132 (holding that [p]ermanent
monuments displayed on public property typically represent government speech);
see supra note 8. Furthermore, even before Pleasant Grove, Establishment
Clause jurisprudence made clear that, standing alone, the fact that a display is
privately donated cannot insulate the government actor from a meaningful
constitutional challenge; indeed, Establishment Clause cases not uncommonly
have involved donated displays. See, e.g., Van Orden, 545 U.S. at 701 (Breyer,
J., concurring) (The group that donated the monument, the Fraternal Order of
Eagles, a private civic (and primarily secular) organization, while interested in the
religious aspect of the Ten Commandments, sought to highlight the
Commandments role in shaping civic morality as part of that organizations
efforts to combat juvenile delinquency.); Card v. City of Everett, 520 F.3d 1009,
1010 (9th Cir. 2008) (noting in an Establishment Clause case that the monument
was donated to the City of Everett . . . by the local aerie (chapter) of the
Fraternal Order of Eagles); cf. City of Ogden, 297 F.3d at 998, 1009
(undertaking Establishment Clause hypothetical analysis when raised as a
defense in lawsuit involving Ten Commandments monument donated by the
Fraternal Order of Eagles).
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noticed that the Monument was one of numerous other monuments and displays
on the courthouse lawn. This fact would typically weigh against a finding of
endorsement. See OConnor, 416 F.3d at 1228 (The reasonable observer . . .
would therefore be aware that the statue was one of thirty outdoor sculptures
displayed on the Washburn campus, of which several were located within sight of
the challenged display.); City of Ogden, 297 F.3d at 1011 ([W]e are persuaded
that a reasonable observer would, instead, note the fact that the lawn of the
municipal building contains a diverse array of monuments, some from a secular
and some from a sectarian perspective.); see also Van Orden, 545 U.S. at 701
(Breyer, J., concurring) ([T]o determine the message that the text [of the Ten
Commandments] here conveys, we must examine how the text is used. And that
inquiry requires us to consider the context of the display.); OConnor, 416 F.3d
at 1228 ([T]he question of whether the government has endorsed a particular
religious display depends in large part on the displays particular physical
setting.). In this regard, in finding that the Monument was constitutional, the
district court opined that the mlange on the courthouse lawn represents what
Haskell County citizens consider the noteworthy events and sentiments of their
county, their state and their nation. Green, 450 F. Supp. 2d at 1295. 14
14

We do not think the reasonable observer would find the Monuments

precise location militates in favor of a conclusion of impermissible endorsement.
Mr. Green would have us place significance on the fact that the Monument could
be viewed from the road. While we have noted in the past that a prominent
(continued...)
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However, the Monument is not a part of a unified exhibit in a typical

museum setting like the statute found in OConnor. See OConnor, 416 F.3d at
1228 (noting that a brochure made clear that the statue was part of an outdoor art
exhibit). Nor is the courthouse lawn a setting that is typically associated with
intellectual experimentation like the university setting of OConnor. Id. at 122930 (noting that the statue at issue, Holier Than Thou, was displayed in the
context of a university campus, a place that is peculiarly the marketplace of
ideas and that especially in that context no reasonable person would associate
the message of Holier Than Thou with the state (internal quotation marks
omitted)). Furthermore, we do not view the Haskell County courthouse context as
bearing a close resemblance to the monument setting in Van Orden. 545 U.S. at
702 (Breyer, J., concurring) (describing the monument sitting in a large park
containing 17 monuments and 21 historical markers, all designed to illustrate the
14

(...continued)
location can weigh in favor of endorsement, see OConnor, 416 F.3d at 1228
(observing that factors including the statues location next to a footpath at a
prominent location on campus, in an area reserved for official use would weigh
toward a finding of state endorsement), this Monument was placed in line with
the other monuments already on the lawn, and the monuments could all be seen
together. See Appendix Ex. C. Thus, we see no grounds for concluding that a
reasonable observer would find that the Board had assigned a place of special
prominence to the Monument in an effort to endorse its religious message. See
Green, 450 F. Supp. 2d at 1294 ([T]he Monument is not particularly large, and is
not in a clearly high traffic area. . . . Furthermore, the Monument does not appear
to be placed in an area that is the most frequented route taken to the courthouse
by citizens going there to undertake business.). However, as suggested by the
analysis relating to OConnor and Van Orden in text infra, this point hardly wins
the day for the Board.
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ideals of those who settled in Texas and of those who lived there since that
time). 15 Although ultimately finding that the Monument had a secular effect, the
district court here acknowledged that people . . . might see the monument display
[of Van Orden] in Texas as more cohesive, more integrated, more, well, artistic
than the Stigler mlange. 16 Green, 450 F. Supp. 2d at 1288.
15

To be sure, at a high level of generality, the Haskell County

courthouse display involving the Monument does bear some similarities to the
capitol grounds display in Van Orden. However, one might reasonably expect
that frequently that will be the case with Ten Commandments monument displays
on courthouse lawns, or capitol grounds, or similar governmental venues. Even
before Van Orden, governments undoubtedly were inclined to display in such
places multiple symbols of things that they presumed the people they served
cherished or venerated, including the Ten Commandments. E.g., City of Ogden,
297 F.3d at 998 (Located to the left and to the right of the Monument are,
respectively, a police officer memorial and a sister city tree and plaque. Also
located on the Municipal Grounds, though somewhat removed from the area
containing the above-described monuments, are various historical markers.).
After Van Orden, governments wishing to display Ten Commandments
monuments will be even more motivated to display them with multiple symbols in
the hope of gaining some incremental level of protection against Establishment
Clause liability.
16

Lest we generate confusion, this is not a matter of aesthetics. In Van

Orden, the secular historical and moral messages of the Ten Commandments
display were highlighted by the fact that they were part of an assortment of
monuments that shared a unifying, cohesive secular theme. Van Orden, 545 U.S.
at 701-02 (Breyer, J., concurring). That theme reflected the historical ideals of
Texans that allegedly were grounded on moral principles involving ethics and
the law. Id. at 702. Therefore, at least in part due to the cohesive theme, the
capitol grounds display in Van Orden communicate[d] to visitors predominately
the message that the State sought to reflect moral principles, illustrating a
relation between ethics and law, id.rather than a message that was
predominately religious. The district court here apparently recognized this aspect
of Van Orden. That led the court to observe that, although there were several
monuments on Haskell Countys courthouse lawn, there was less of a unifying,
(continued...)
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Significantly, the sharp contrast between the timing of the legal challenges
to the monument in Van Orden and the one in this case sheds significant light on
whether the reasonable observer would have perceived the latter as having the
effect of endorsing religion. See Weinbaum, 541 F.3d at 1031 (If a government
symbol has long gone unchallenged, there is a suggestion that an objective
observer would not think that the symbol endorses a religious message.). In Van
Orden, Justice Breyer observed that 40 years passed in which the presence of
this monument, legally speaking, went unchallenged. 545 U.S. at 702 (Breyer,
J., concurring); see id. at 682 (plurality opinion) (Forty years after the
monuments erection and six years after Van Orden began to encounter the
monument frequently, he sued numerous state officials in their official capacities
. . . seeking both a declaration that the monuments placement violates the
Establishment Clause and an injunction requiring its removal.).
Justice Breyer reasoned that those years of tranquility suggest more
strongly than can any set of formulaic tests that few individuals, whatever their
system of beliefs, are likely to have understood the monument as amounting, in

16

(...continued)
cohesive secular theme associated with those monuments than with the Van Orden
monuments. As a consequence, under the reasoning of Van Orden, the Haskell
County courthouse display was at least to some appreciable degree less likely
than the Van Orden display to bring to the fore the secular historical and moral
messages of the Ten Commandments. The reasonable observer therefore would
be more inclined than in Van Orden to view the Ten Commandments as evincing
a religious message. Therefore, the point here is not one of aesthetics.
- 42 -

any significantly detrimental way, to a government effort to favor a particular

religious sect, primarily to promote religion over nonreligion. Id. at 702
(Breyer, J., concurring); cf. id. at 703 (This case also differs from McCreary
County, where the short (and stormy) history of the courthouse Commandments
displays demonstrates the substantially religious objectives of those who mounted
them, and the effect of this readily apparent objective upon those who view
them.). Indeed, Justice Breyer found the passage of forty years without a
challenge to the monument to be determinative. 17 Id. at 702; cf. Pleasant
Grove, 129 S. Ct. at 1140 (Scalia, J., concurring) (noting that [t]he city can
safely exhale and its residents can enjoy a public park containing a Ten
Commandments monument without fear that they are complicit in an
establishment of religion, because, inter alia, the monument was erected in
1971 and that means it is approaching its (momentous!) 40th anniversary
without an Establishment Clause challenge).
Here, the difference is striking. In less than one year after the Monument

17

Given that Van Orden was decided by a plurality, the separate

opinion of Justice Breyer, who supplied the decisive fifth vote, Heideman v. S.
Salt Lake City, 348 F.3d 1182, 1198 (10th Cir. 2003), is controlling under the rule
of Marks v. United States, 430 U.S. 188, 193 (1977) (When a fragmented Court
decides a case and no single rationale explaining the result enjoys the assent of
five Justices, the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest grounds.
(internal quotation marks omitted)). See Clement, Public Displays, supra, at 241
(Because no opinion [in Van Orden] commanded a majority, Justice Breyers
concurring opinion is the law of the case.).
- 43 -

was unveiled, Mr. Green challenged the erection of the Monument as an

Establishment Clause violation, filing the federal lawsuit underlying this appeal.
Accordingly, despite its presence on the courthouse lawn with other displays and
monuments, this rather prompt litigation response to the Monument makes it
difficult for us to glean a suggestion that an objective observer would not think
that the symbol endorses a religious message. Weinbaum, 541 F.3d at 1031.
Accordingly, viewing the record as a whole, we do not believe that the
Monuments setting here should lead us to a different conclusion on the
endorsement question.
Likewise, we cannot conclude that the Monuments text that is unrelated to
the Ten Commandments would persuade a reasonable observer that the principal
or primary effect was not to endorse religion. The reasonable observer would
have been aware that the Monument not only contained the Ten Commandments,
but also the Mayflower Compact. The fact that the Ten Commandments are not
displayed in isolation is not without significance. See, e.g., McCreary, 545 U.S.
at 869 (The point is simply that the original text [of the Ten Commandments]
viewed in its entirety is an unmistakably religious statement dealing with
religious obligations and with morality subject to religious sanction. When the
government initiates an effort to place this statement alone in public view, a
religious object is unmistakable. (emphasis added)). But, at least on these facts,
the import of its pairing with the Mayflower Compact is equivocal at best.
- 44 -

The Mayflower Compact has an independent historical significance and

also demonstrates the relevance of religion to that history. See, e.g., Sch. Dist. of
Abington Twp. v. Schempp, 374 U.S. 203, 213 (1963) (The fact that the Founding
Fathers believed devotedly that there was a God and that the unalienable rights of
man were rooted in Him is clearly evidenced in their writings, from the
Mayflower Compact to the Constitution itself.); see also Van Orden, 545 U.S. at
683 (quoting same); Edwards v. Aguillard, 482 U.S. 578, 606 (1987) (Powell, J.,
concurring) (quoting same). However, we cannot construe a display of the Ten
Commandments not to be an endorsement of religion merely because it is
accompanied by the Mayflower Compact or other secular documents. See
McCreary, 545 U.S. at 854, 856 (noting that the Mayflower Compact was
included in the second and third versions of the display containing the Ten
Commandments that was ultimately struck down). Its inclusion arguably could be
viewed as merely part of an unstinting focus . . . on religious passages that
merely furthers the endorsement. Id. at 870. The evidence thus cuts in both
directions, and because no effort was made by the Board to help the reader
interpret the intended relationship between the two documents, the reasonable
observer would not find the Mayflower Compact helpful in determining whether
the Monument endorses religion. 18
18

Furthermore, we also note that the reasonable observer would have

been aware that the Mayflower Compact was added by Mr. Bush after the Board
(continued...)
- 45 -

Similarly, we do not believe that the reasonable observer would be less

inclined to find an impermissible endorsement of religion because of the
Monuments notation Erected by Citizens of Haskell County. We recently
suggested in other cases that a city could post a disclaimer explaining clearly
that private entities are responsible for at least some of the [monuments on
municipal grounds], including the Ten Commandments Monument and the Seven
Principles Monument. City of Ogden, 297 F.3d at 1011; see Van Orden, 545
U.S. at 701-02 (Breyer, J., concurring) (The tablets, as displayed on the
monument [bearing the Ten Commandments], prominently acknowledge that the
Eagles [a private civic, and primarily secular, group] donated the display, a factor
18

(...continued)
authorized the Monument project and the Board apparently did not subsequently
formally agree to its placement on the Monument. This fact may bear more on the
purpose inquiry. Cf. OConnor, 416 F.3d at 1226 (Nor does the evidence show
that the statues caption was selected with anti-Catholic intent. The record
establishes that the caption had not yet been placed on the statue at the time it
was selected by the Campus Beautification Committee and approved by President
Farley.). However, the Monuments context and history certainly also are
relevant to the effect inquiry. See, e.g., Weinbaum, 541 F.3d at 1031 (noting that
the effect prong looks through the eyes of an objective observer who is aware of
the purpose, context, and history of the symbol (emphasis added)); cf. OConnor,
416 F.3d at 1225 n.2 (In this case, the context and content of the statue is
relevant to the effect of the display in addition to the universitys purpose.)
Therefore, the reasonable observer assessing the Monuments effect would have
been aware that at the time the Board authorized its erection, as far as the Board
knew, the Monument would consist only of the Ten Commandments. Cf.
Weinbaum, 541 F.3d at 1033 (Effects are most often the manifestations of a
motivating purpose.). Consequently, even if the independent historical
significance of the Mayflower Compact ordinarily would militate in favor of a
finding of non-endorsement in the reasonable observers eyes, the reasonable
observer probably would have been less likely to give it that effect here.
- 46 -

which, though not sufficient, thereby further distances the State itself from the
religious aspect of the Commandments message.). However, the addition of
such a disclaimer would not be sufficient, alone, Van Orden, 545 U.S. at 701
(Breyer, J., concurring), and could not tip the balance on these facts, given the
very significant magnitude of the evidence indicating an impermissible
endorsement. 19 Furthermore, any incremental movement toward the side of nonendorsement resulting from the addition of the notation would be hobbled by the
reasonable observers awareness that the addition took place after litigation had
begun and on the eve of trial. Litigation positions do not alter reasonable
memories. Cf. McCreary, 545 U.S. at 871-72 (noting that the counties new
statements of purpose were presented only as a litigating position and that [n]o
reasonable observer could swallow the claim that the Counties had cast off the
[religious] objective so unmistakable in earlier displays).
We conclude by underscoring the proposition that [c]ontext carries much
weight in the Establishment Clause calculus. Weinbaum, 541 F.3d at 1033. In
the context of the small community of Haskell County, we hold that the Boards

19

Indeed, we had no occasion in City of Ogden to assess the likely

impact of such a disclaimer because it would merely have aided there in
confirming what already was clearly not an Establishment Clause violation. See
City of Ogden, 297 F.3d at 1011 (rejecting the argument that, hypothetically, the
citys acceptance of a display with a religious theme would have the effect of
endorsing religion, but noting [t]o the extent to which the City of Ogden remains
genuinely concerned regarding the likely misapprehensions of passersby, the City
might also post a disclaimer (emphasis added)).
- 47 -

actions in authorizing and maintaining the Monumentinscribed with the Ten

Commandmentson the courthouse lawn had the impermissible principal or
primary effect of endorsing religion in violation of the Establishment Clause.
III. CONCLUSION
The district courts order is REVERSED. We REMAND for the district
court to enter judgment consistent with this opinion.

- 48 -

Appendix A

Plaintiffs Exhibit 85 (size reduced to fit page).

- 49 -

Appendix B

Defendants Exhibit 7 (Deposition Exhibit 6) (size reduced to fit page).

- 50 -

Appendix C

Defendants Exhibit 27 (size reduced to fit page).

- 51 -

Appendix D

Plaintiffs Exhibit 1 (size reduced to fit page).

- 52 -